February 14, 2004

"Municipal anarchy" in San Francisco. Stealing the gay marriage spotlight from Massachusetts, San Francisco is issuing marriage licenses to same-sex couples. Dean E. Murphy writes in the NYT:

Most legal scholars agreed that the new licenses altered to replace "bride" and "groom" with "first applicant" and "second applicant" held only symbolic value because California law defines marriage as being between a man and a woman. Even city officials advised the newly married couples "to seek legal advice" about their status.

Should we worry about chaos and lawlessness? Or is this another example of how American federalism works, leaving some matters to be determined by local conditions and preferences? Yes, I know, we usually think of federalism in terms of states, but California is such a large state, much larger than the entire collection of states at the time the Constitution was founded. Is it wrong for a city to take the lead?

You may think it's wrong for a city to put its own policy above state law, but the question of what state law is remains in play.

Though city officials acknowledge that the state's family law does not allow for same-sex marriages, they assert that guarantees of equality in the state Constitution take precedence, which could set up a legal battle on lines similar to the one being waged in Massachusetts.

Surely, the spectacle of 500 people going through a ceremony in the beautiful rotunda of San Francisco's City Hall will affect how people think about the legal issues here. Judges are not immune to that. It is undeniable that the demonstrations of the Civil Rights Era affected the minds that thought about the rights at stake. There were people then who saw chaos breaking out, but that interpretation has been overwhelmed by the force of history.